Judge: 'Whitey' Bulger can't use immunity defense

The federal judge overseeing the James "Whitey" Bulger case has dealt the defendant and his lawyers a major defeat: They may not argue to the jury that Bulger had immunity to commit the crimes for which he is under indictment.

Defense attorneys J.W. Carney Jr. and Hank B. Brennan had planned to argue at his upcoming trial that Bulger entered into the immunity agreement with former U.S. Attorney Jeremiah O'Sullivan. But less than a week after conducting oral arguments on the issue, U.S. District Court Judge Denise J. Casper has granted a prosecution motion to preclude Bulger from raising the immunity defense.

"[W]here a defendant has failed to make a sufficient evidentiary proffer to support a defense, the Court may prevent the defendant from presenting that defense without violating the defendant's constitutional rights," Casper wrote. "[T]he Court has determined that the issue of immunity is not an issue for the jury; evidence of immunity would therefore not be relevant at trial."

Bulger made the same arguments earlier this year before U.S. District Court Judge Richard G. Stearns, who soundly rejected the claim. But the 1st U.S. Circuit Court of Appeals' decision in March to order Stearns recused from the case allowed Bulger to re-litigate the immunity issue before Casper.

The judge noted in her decision that the ruling does not prevent Bulger from arguing what she called the related offenses of public authority.

In order to carry the day on a defense of public authority, Bulger's attorneys would have to demonstrate that (1) he engaged in the alleged criminal conduct at the behest of a government official; (2) the government official had the power to authorize the action; and (3) he reasonably relied on the government official's authorization.

To prevail an entrapment by estoppel defense, Bulger must show that: (1) a government official informed him that certain conduct was legal; (2) he engaged in what otherwise would be criminal conduct; (3) his engagement in that conduct was in reasonable reliance of the official's representation; and (4) prosecution for the alleged conduct would be unfair.